A Sullivan for the Times: The Madras High Court on the Freedom of Speech and Criminal Defamation

On May 5, a single-judge bench of the Madras High Court handed down a very significant judgment on the freedom of speech and criminal defamation [“Sandhya Ravishankar’s Case“]. The Respondent – V.V. Minerals – had instituted criminal defamation proceedings against Sandhya Ravishankar (the petitioner) for a report in The Economic Times concerning illegal sand mining in Tamil Nadu (for a reference to the piece, see here). After the judicial magistrate issued summons, the petitioner approached the High Court asking for the proceedings against her to be quashed.

Quashing in a criminal defamation case is a difficult prospect. This is because – to simplify – under Section 499 of the IPC, a prima facie offence of defamation is made out with the existence of a defamatory imputation, which has been made with the intention or knowledge that it will cause harm. This is, evidently, a very low threshold. Section 499 also contains a set of exceptions to the rule (such as statements that are true and in the public interest, statements made in good faith about public questions, and so on) – but here’s the rub: these exceptions only kick in at the stage of trial, by which time the legal process has (in all likelihood) dragged on for years. What we essentially have, therefore, is one of those situations where the cost of censorship is low (instituting prima facie credible criminal proceedings), but the cost of speech is high (a tedious, time-consuming, and expensive trial, with the possibility of imprisonment). Long-standing readers will recall that this structure of criminal defamation law – and the chilling effect that it causes – was part of the unsuccessful 2016 challenge to the constitutionality of Section 499.

In a short and lucid judgment, Justice G.R. Swaminathan of the Madras High Court nonetheless proceeded to quash the proceedings. He did so on two bases, both of which are critical for the future development of free speech law. First, on a careful study of recent precedent, he accurately identified the unarticulated premise of those judgments, and took it to its logical conclusion. As Justice Swaminathan noted, the 1994 judgment of the Supreme Court in R. Rajagopal v State of Madras had extended the rule of actual malice, laid down in the American Supreme Court case of New York Times v Sullivan, to Indian law. The Sullivan Rule (whose evolution in the American Civil Rights movement was traced by Swaminathan J.)  is based on the recognition that if free speech, and especially journalistic speech, is to survive, it must have “breathing space.” In other words, mere inaccuracies will not subject the writer to defamation, unless it is shown that the writer either knew that they were making false statements, or made them with “reckless disregard” for whether they were true or false.

In Rajagopal, as pointed out above, the Sullivan principle was applied to civil defamation cases. In subsequent judgments by Justices Shah and Bhat in the Madras and Delhi High Courts, the American trajectory of extending the principle from cases involving only public officials, to cases involving questions of public interest, was also followed (these, too, were extracted by Swaminathan J.). However, as we have discussed previously on this blog, this left the law in a paradoxical state: the law on civil defamation became more speech protective than criminal defamation, a reversal of the traditional rule that criminal proceedings need to come with more procedural safeguards, because of the graver penalties involved (this argument was also unsuccessfully made before the Supreme Court in 2016, as an alternative “reading down” of Section 499 – the Court did not engage with it).

It was Swaminathan J. who finally put the paradox to rest. He noted that Exceptions 2 and 3 to S. 499 – that is, statements on the public conduct of public servants, and on public questions – already encoded the Sullivan principle. Furthermore, as the Madras and Delhi High Courts had specifically concretised the principle in Indian law, that reading would necessarily have to form part of the interpretation of Exceptions 2 and 3 (paragraph 14). Thus:

There can always be a margin of error. The permissible width of the margin will depend on the facts and circumstances of each case. The media can avail this defence whether the complainant is a public official or a private entity. Mere inaccuracies in reporting cannot justify initiation of prosecution.

Thus, as long as there was a public question involved – i.e., “an issue in which the public or the community at large has a stake or interest” (paragraph 15), the Sullivan rule would apply. In this way, Swaminathan J. elegantly reconciled the post-Rajagopal split between civil and criminal defamation, and brought the latter up-to-date.

There still remained the issue, however, of the exceptions kicking in only at the stage of trial, and not at the stage of quashing. This constituted the second significant part of the judgment. Justice Swaminathan noted that under the Constitution, the default was the right to free speech, with restrictions justified only as exceptions. This understanding would have to be incorporated into the interpretation of Section 499, as long as it remained on the statute books. In particular, the judiciary would have to take this fact into account when exercising its powers under Section 482 CrPC, as a dismissal would entail sending the petitioner back to the trial court to fight the entire case. Thus:

If a summary examination of the materials produced by the accused can bring their case within one of the Exceptions, I can give relief to the petitioners here itself instead of making them undergo the ordeal of trial. Such an activist role will have to be played by the higher judiciary because it is a matter of record that criminal defamation proceedings have become a tool of intimidation and before corporate bodies and powerful politicians whose pockets are tunnel deep and whose hands are long even media houses having good resources have capitulated. (paragraph 20)

Conducting that summary examination, Swaminathan J. noted that the article was (a) based on a public interest litigation filed before the Madras High Court, (b) it contained a response from the complainant, (c) there were a few errors, which were later clarified and apologised for by the magazine, (d) cognisance was taken by the Court of the allegations of illegal mining, and a status quo order was passed (paragraph 21). For these reasons, Swaminathan J. held that the Exception was clearly attracted, the “good faith” requirement had been met, and that consequently, a case for quashing was made out.

It is my submission that Swaminathan J.’s approach was entirely correct, and I would add that I do not think it was “activist” in any sense. As the extracted paragraph demonstrates, Swaminathan J. clearly reasoned that (a) Article 19(1)(a) makes it evident that restrictions upon free speech – such as those imposed by criminal defamation – are to be understood as “exceptions”; (b) that the structure of criminal defamation law, as it stood, was contrary to this principle, and indeed, because of this, it had become a tool to facilitate legal harassment and SLAPP suits. Now, it may not be easy for a trial judge to depart from the strict bounds of criminal procedure and, say, entertain an application for discharge by considering whether the Exceptions to S. 499 have been made out or not. This is why Swaminathan J. located the remedy in Section 482 proceedings before the High Court, but nonetheless, conducted only a “summary examination” of the complaint to determine whether the exception was self-evidently made out or not. He found that it did. Notably, the summary examination did not require him to rule on disputed questions of fact and evidence, but whether on the accepted facts – that is, on the complainant’s best case – the exception was attracted or not. In this case, given the language of Section 499, and the constitutional framework with which it must comply, it is submitted that Swaminathan J. got the balance exactly right.

In sum, therefore, Sandhy Ravishankar’s Case is a crucial landmark in the history of judicial protection of free speech in India. It takes forward the unrealised promise of Rajagopal, and further develops the law laid down by the Madras and Delhi High Courts. The judgment holds that (a) the Sullivan rule of actual malice applies to criminal defamation, and in particular, to Exceptions 2 and 3. Thus, mere factual errors in reports on issues of public importance cannot justify criminal prosecution; and (b) that in light of the constitutional guarantee of free speech the High Court, acting under Section 482 CrPC, is empowered to conduct a “summary examination” and assess whether an accused falls within the Sullivan rule in a particular case or not – and to quash the case if they do. This is a powerful doctrine for the future protection of free speech, and a bulwark against the continued use of SLAPP suits as a legal weapon to silence inconvenient journalism.


Guest Post: On Free Speech and Jurisdictional Issues in Online Defamation Cases

(This is a guest post by Raghav Kohli.)

An overwhelming cavalcade of technological innovations since the last century has redefined the relationship between law and technology; the Indian Judiciary, quite helplessly, has been playing catch-up ever since. Recently, in one of many such instances that demonstrate the awkwardness of Indian judges in engaging with technology, the Supreme Court in M/s Future Gaming and Hotel Services Pvt. Ltd v. Malayala Manorama & Ors passed an order confirming the regressive approach of Indian Courts towards jurisdictional issues arising out of the online dissemination of free speech.

The facts, briefly, were as follows: The Respondents, a Malayalam Vernacular Daily Newspaper, published a news article on 22-04-2015 that was also made available online on their website. A complaint was lodged by the Petitioner, before the Chief Judicial Magistrate, East and North, at Gangtok (hereafter CJM), inter alia, on grounds that the news so published had defamed the Petitioner Company. The CJM issued process of summons against the Respondents, who subsequently filed a Petition under Article 482 of the Code of Criminal Procedure (hereafter CrPC) before the High Court of Sikkim at Gangtok for quashing the complaint and setting aside the summon order. The High Court quashed the complaint for want of territorial jurisdiction of Courts in Sikkim as the Complainant had “failed to point to any person who has in fact read the online version or downloaded the same to make the offence under Section 499 of the IPC complete and thereby extend jurisdiction to the Courts in Sikkim” (paragraph 9).

Consequently, the Petitioners filed a Special Leave Petition before the Supreme Court, which set aside the decision of the Sikkim High Court. It was held that the complaint could not be quashed at this stage since the list of witnesses contained residents of Sikkim, who proposed to give evidence to the effect that the alleged offence had taken place in Sikkim. The division bench of AK Goel, J. and UU Lalit, J. thus impliedly confirmed that in cases of online defamation, courts could assume jurisdiction in any place where the impugned material is accessed.

The Law

Before addressing the question of why such an approach is problematic, it is of pertinence to analyse the rules governing the territorial jurisdiction of courts in civil and criminal cases. Among other provisions to determine jurisdiction in Chapter XIII of the CrPC, Section 179 provides that “When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.” Similarly, Section 19 of the Code of Civil Procedure (hereafter CPC) provides that “where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Court”.

Traditionally, courts have interpreted Section 19 of the CPC and Section 179 of the CrPC expansively in offline defamation cases to extend territorial jurisdiction to not only Courts at the place where the defamatory statement is first made and published (in the sense of the statement being communicated), but also where it is subsequently published, circulated and read. For example, in Dr. Subramaniam Swamy vs Prabhakar S. Pai, the assailed statement was made at Chandigarh at a press conference, but also later published by the Indian Express in Bombay. The Bombay High Court held that “the consequence of the statement made at Chandigarh has been completed at Bombay by circulation of the said newspapers, and, therefore, the offence of defamation is complete in the City of Bombay. In view of the provisions of S. 179 of the Criminal P.C. both the Courts, at Chandigarh and at Bombay, will have jurisdiction to entertain a complaint under S. 500 of the Indian Penal Code.” Similarly, the Karnataka High Court in P.Lankesh and Another v. H. Shivappa & Anr., held that “It cannot be said that the act of publication comes to an end as soon as one issue of the newspaper is released at one place … If the defamatory imputation is made available to public at several places then the offence is committed at each such place. Though the first offence may be committed at the place where it is printed and first published, it gets repeated wherever the newspaper is circulated at other places.”

The Law in the Online World

The issue arises when Courts apply the same standard for determining jurisdiction in cases of online dissemination of speech; and High Courts across India have done that unanimously. In fact, the Delhi High Court as recently as in the 2016 case of Frankfinn Aviation Services Pvt. Ltd v. Tara Kerkar & Ors held that by putting defamatory material on the internet, “territorial jurisdiction does not remain confined to the place of actual defamation … (and) jurisdiction would be at both places i.e. the place where the actual defamation takes place and the place where such defamatory material is transmitted through website”. Even the Sikkim High Court in the Malayala Manorama case would have found that Courts in Sikkim are competent to exercise territorial jurisdiction if only the Petitioner had produce a person who had read (or downloaded?) the online version in Sikkim.

However, courts have conveniently chosen not to engage with the detrimental consequences of adopting such an expansive approach on free speech. By allowing for the assumption of jurisdiction by any court situated at a place where the website may be accessed, courts have failed to appreciate the inherent distinctions between traditional media and new digital media, and effectively permitted individuals to “create” territorial jurisdiction in online defamation cases as per their convenience across the country (at least). Consequently, this provision has been systematically used to harass journalists, authors, and other individuals, who are forced to travel to remote locations at great personal expense. In fact, Human Rights Watch in 2016 reported several such instances of harassment, with the Tamil Nadu government, for example, having reportedly filed nearly 200 cases of criminal defamation between 2011 and 2016.

The hardship faced by an accused is further augmented as there is no cap on the number of cases that may be filed against him or her under Section 199, CrPC, which lays down the procedure for prosecution. It is also settled law that the exceptions to defamation are only considered after the trial commences in light of Section 204, CrPC, read with Section 105 of the Indian Evidence Act (reiterated in paragraph 198 of Subramanium Swamy v. Union of India). Thus, the accused has minimal safeguards at the time of issuance of process against unscrupulous allegations. Although Section 202, CrPC mandates that the Magistrate postpone the issue of process for deciding whether or not there are sufficient grounds for proceeding in cases where the accused is residing at a place beyond his/her jurisdiction, it often does not afford adequate protection to the accused against harassment, making the process a punishment in itself. This is also applicable to the rare occasions when the accused may be allowed to appear via video conferencing (as was done in the Malayala Manorama case), which engenders its own set of issues.

The Chilling Effect

The cumulative effect of these draconian procedures is a “chilling effect” on speech, which prompts people to engage in self-protective censorship in fear of penalisation. Although this concept has formed an essential part of First Amendment phraseology and jurisprudence in the United States since the 1950s, it was adopted into our free speech jurisprudence much later (starting with the Delhi High Court). The Indian Supreme Court has now recognised this concept in several cases, such as R. Rajagopal v. State of T.N, where the Court modified the common law of civil defamation and noted the chilling effect caused by a no-fault liability standard (paragraph 19). Similarly, in S. Khushboo v. Kanniammal, the Court observed that the law “should not be used in a manner that has chilling effects on the freedom of speech and expression” (paragraph 29). Most famously, in the widely celebrated judgment of Shreya Singhal v. Union of India, the Supreme Court invoked the principles of “vagueness” and “overbreadth” in addition to the chilling effect to strike down Section 66A of the IT Act in 2015 (paragraph 90).

Interestingly, in the case of Subramanium Swamy v. Union of India, in which the Supreme Court upheld the constitutionality of criminal defamation, a similar argument was made by some of the petitioners (Read paragraph 20 of Mr. Arvind Datar’s submission here) against the procedure governing the prosecution of defamation under the the CrPC. It was argued that such rules amounted to procedural unreasonableness and imposed a chilling effect on speech, and were thus unconstitutional. The Court’s response to this submission is a classic example of how judges often conveniently disregard engaging with the submission made, and dismiss it by merely reiterating the settled law.

After noting the abuse of procedural laws and summarising the law on territorial jurisdiction contained in Sections 176-179 and Section 186 of the CrPC, the Court observed: “Thus, CrPC governs the territorial jurisdiction and needless to say, if there is abuse of the said jurisdiction, the person grieved by the issue of summons can take appropriate steps in accordance with law. But that cannot be a reason for declaring the provision unconstitutional” (paragraph 195). The Court failed to even acknowledge that the chilling effect argument made was premised upon the inadequacy of the so-called “appropriate steps in accordance with the law.”

Similarly, on the argument of considering the exceptions under Section 499 at the time of summoning the accused, the Court summarised the settled position of law that those who plead an exception must prove it, and observed: “Therefore, the argument that if the said Exception should be taken into consideration at the time of the issuing summons it would be contrary to established criminal jurisprudence and, therefore, the stand that it cannot be taken into consideration makes the provision unreasonable, is absolutely an unsustainable one and in a way, a mercurial one. And we unhesitatingly repel the same” (paragraph 198). Apparently, using “therefore” multiple times in a sentence sufficed as a justification.

Lessons from Abroad 

In fact, it was in response to similar issues arising out of the online dissemination of speech such as forum shopping and stifling of free speech that foreign jurisdictions such as the United States evolved restrictive tests to determine “personal jurisdiction” (or, the court’s jurisdiction over the parties in a suit) in online defamation cases. The Due Process Clause of the Fourteenth Amendment permits a court to exercise personal jurisdiction (even where a long arm statute exists) “over a foreign defendant when (1) that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing `minimum contacts’ with the forum state; and (2) the exercise of jurisdiction over that defendant does not offend `traditional notions of fair play and substantial justice.’ Sufficient minimum contacts will give rise to either specific or general jurisdiction. General jurisdiction exists when a defendant’s contacts with the forum state are unrelated to the cause of action but are `continuous and systematic.’ Specific jurisdiction arises when the defendant’s contacts with the forum ‘arise from, or are directly related to, the cause of action.’” (Revell v. Lidov at paragraph 20) The mere accessibility of data hosted on a website in the forum state has consistently been held to be insufficient by both standards for the forum court to assume jurisdiction. The court, therefore, determines jurisdiction based on different criteria such as the active or passive nature of the website (as per the “Zippo Sliding Scale”, for example, established in the case of Zippo Manufacturing Co v. Zippo Dot Com Inc.), or, by applying the “effects test” (established in Calder v. Jones, to adjudge whether the effects caused by an defamatory article in the forum state were specifically directed and intended towards it as to confer jurisdiction upon it).

The 2002 decision of the United States Court of Appeals, Fifth Circuit, in Revell v. Lidov is a good illustration of the application of these concepts. The brief facts are as follows: Revell (a resident of Texas) sued Lidov (a resident of Massachusetts) and Columbia University (whose principal office were in New York City) in the Northern District of Texas for defamation arising out of Lidov’s authorship of an article that he posted on an internet bulletin board hosted by Columbia. The district court dismissed Revell’s claims for lack of personal jurisdiction over both Lidov and Columbia as it found the website to be “Zippo-passive”. When this decision was appealed before the Circuit Court, the issue to be determined was whether the operation of an internet site supported the minimum contacts necessary for the exercise of personal jurisdiction. It was held that owing to both the low level of interactivity of the website, and inapplicability of the “effects” test, specific personal jurisdiction could not be established in Texas. It was observed that “the post to the bulletin board here was presumably directed at the entire world, or perhaps just concerned U.S. citizens. But certainly it was not directed specifically at Texas… As these cases aptly demonstrate, one cannot purposefully avail oneself of ‘some forum someplace’; rather, as the Supreme Court has stated, due process requires that ‘the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’” Similarly, it was held that general personal jurisdiction could not be established as the “maintenance of a website is a continuous presence everywhere in the world” and does not amount to a “substantial” contact.

It is also interesting to note that while Indian courts have continued to apply traditional jurisdictional rules in online defamation cases, they have increasingly turned to the progressive US standards in trademark infringement disputes. For example, in the landmark case of Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy & Anr, the Court held that it had jurisdiction over the defendant but it did not get attracted merely on the basis of interactivity of the website which is accessible in the forum state, but on the basis that viewers in the forum state were specifically targeted by the Defendant Website. In an extensive analysis of tests adopted by different jurisdictions to assume territorial jurisdiction, Justice S. Muralidhar went to the extent of noting that “While courts have more readily applied the ‘effects’ test in defamation cases [see Remick v. Manfredy, 238 F.3d 248 (2001); Noonan v. Winston Comp., 135 F.3d 85, 91 (1998)]; Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002) there have been problems in its application to trademark infringement cases” (paragraph 25). This progressive approach to determine jurisdiction has been reiterated in several High Court decisions such as the 2017 decision of the Delhi High Court in Federal Express Corporation v Fedex Securities Ltd. & Ors.

Justice Brennan in the US Supreme Court decision of NAACP v. Button famously remarked that freedom of speech needs “breathing space to survive”. Adopting a regressive approach towards jurisdictional issues arising out of online speech inhibits exactly that. It is hoped that the Indian Supreme Court on a suitable occasion in the future will deliberate on these arguments, and step up to protect this freedom from being choked.

Notes from a Foreign Field: The Constitutional Court of Lesotho Strikes Down Criminal Defamation

In a terse, 37-page judgment delivered last week, the Constitutional Court of Lesotho struck down criminal defamation as unconstitutional. The judgment repays some scrutiny, because many of the arguments raised – and addressed – by the Court are similar to the arguments that were made in the unsuccessful constitutional challenge to criminal defamation in India two years ago. Further, the Lesotho Constitutional Court’s application of the global proportionality standard to invalidate criminal defamation shows a potential path forward here, where proportionality has come to the fore after the judgment in Puttaswamy.

The constitutional challenge in Lesotho arose out of criminal proceedings against a satirical article that mocked the Commander of the Lesotho Defence Forces. The author of the article was accordingly prosecuted. Section 104 of the Lesotho Penal Code defined criminal defamation in terms somewhat similar to the IPC. The relevant defences – also akin to the IPC – included proving that the material was true and for public benefit, or establishing legal privilege.

Section 14 of the Constitution of Lesotho guaranteed the right to freedom of speech and expression. The section also authorised restrictions upon the freedom of speech, including, inter alia, “for the purpose of protecting the reputations, rights and freedoms of other persons (interestingly, the Section also provided for a right of reply).

The Court began its analysis by noting the intrinsic and instrumental benefits of the freedom of expression in a democracy (paragraph 8). These are well-worn by now, and do not need repetition. In particular, the Court focused on the importance of satire in a democracy, and the need for any guarantee of the freedom of speech to protect satire (paragraph 9) – especially where “public figures” such as the (former) Commander of the Lesotho Defence Force were concerned, who ought to “display a higher degree of tolerance” (compare this with the Indian Supreme Court’s invented doctrine of “historically respectable personalities). Within this framework, the Court then applied the three-step proportionality standard to decide whether criminal defamation was constitutional. This standard – in the form that the Court endorsed – requires, first, that a restriction upon rights be imposed only through a law, which has a rational connection with the goal; secondly, that the law impair rights only to the minimal extent necessary to achieve the State interest; and thirdly, that there be an overall balancing between the extent to which the right is infringed, and the importance of the goal (paragraph 16).

Criminal defamation cleared the first hurdle, which was a rational connection with the legitimate State interest of protecting reputation. However, it fell at the second hurdle, that of minimal impairment. The Court found, first, that the law was over-broad and vague, inter alia, because the defence of “public benefit” had not been defined, and that “anything could be characterised as not being for “public benefit” due to the elasticity of this concept” (paragraph 18). In particular, by using this concept as a filter, the Court noted that “the Legislature has granted an unfettered discretion to the Prosecutorial authorities”, which would inevitably cast a chilling effect upon freedom of speech and expression (paragraph 18). The Court also found that through its requirement of “truth”, the Section effectively criminalised satire which, by its nature, “exaggerates and distorts reality” (paragraph 18).

Next, the Court held that criminal defamation also failed on the third prong of proportionality – that of a balance between the goal of protecting reputation, and its curtailment of speech. This included the very real possibility of self-censorship, and the existence of civil remedies (paragraph 19), which helped to achieve the same goal without the stigma, direct targeting, and greater punishments that defined the criminal legal regime. The Court closed with noting that the international trend – from a recent judgment of the African Court on Human and Peoples’ Rights (paragraph 21) to international legal instruments (paragraphs 22 – 23) – was towards holding that criminal defamation was no longer consistent with the requirements of democratic societies. The Court therefore concluded:

“The means used to achieve the purpose of protecting reputation interests, in some instances, are overbroad and vague in relation to the freedom of expression guarantee in Section 14 of the Constitution. Furthermore, having concluded that criminal defamation laws have a chilling effect on the freedom of expression, and that, civil remedies for reputational encroachment are more suited towards redressing such reputational harm, I have come to the conclusion that the extent of the above-mentioned sections’ encroachment on the freedom of expression is “not reasonable and demonstrably justified in a free and democratic society.”” (paragraph 24)

Criminal defamation was, accordingly, struck down.

In light of the Lesotho Constitutional Court’s judgment, and before it, in recent times, the judgment of the High Court of Kenya and the African Human Rights Court (both holding criminal defamation to be unconstitutional, in different ways), the Indian Supreme Court’s rambling, near-incoherent, 268-page judgment in Subramanian Swamy v Union of India (2016), which invented new doctrines such as “constitutional fraternity” in order to uphold criminal defamation as constitutional, seems more and more anachronistic. That apart, however, the Lesotho judgment suggests a way forward: in Swamythe two-judge bench of the Supreme Court did not examine the constitutionality of criminal defamation on the three-step proportionality standard. Many of the arguments made before the Lesotho constitutional court – including overbreadth and vagueness, the chilling effect of terms such as “public good”, and the disproportionality of criminal remedies, were dismissed by the Court without a serious examination under the proportionality standard. In Puttaswamy, however, a nine-judge bench of the Supreme Court definitively incorporated the global proportionality standard into Indian constitutional law. In addition to Swamy’s failure to consider may relevant constitutional arguments (see here), this now makes the case for revisiting that judgment even stronger.

In Puttaswamy, the Court acknowledged – within the short span of five years – that its judgment in Koushal v Naz Foundation had been a mistake. This is to the Court’s credit. It would be equally to its credit to acknowledge that its judgment from two years ago, in Subramanian Swamy, was as grave a mistake – and to join the growing ranks of post-colonial countries that have consigned this anachronistic provision to the dustin of history.

Why the Supreme Court’s Criminal Defamation Judgment is Per Incuriam

In common law, a judgment that is per incuriam has no legal force or validity, and does not count as precedent. Classically, per incuriam is a very narrow concept, applicable only in two circumstances: to a judgment that is passed in ignorance of a relevant statutory provision, or without considering binding precedent of a coordinate or larger bench. In 2015, however, in Sundeep Kumar Bafna v State of Maharashtra, the Supreme Court expanded the definition of per incuriam, noting that:

“It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.”

The expansion of the doctrine of per incuriam in the Indian context makes sense, for at least two reasons. The first is the proliferation of two-judge benches of the Supreme Court pronouncing on important constitutional issues, and invariably at odds with each other. Recent examples include Koushal and NALSADevidas Tuljapurkar and Aveek Sarkar, and (as I shall explain) Subramaniam Swamy (the present judgment) and R. Rajagopal. As the Supreme Court correctly notes in Bafna, “certainty of law” and “consistency of rulings” is a very important principle (one of the basic constituents of the rule of law), and given the sheer volume of cases being decided by two-judge benches, it must be applied with greater rigour.

The second reason is that at present, judgments tend to reproduce submissions of counsel at great length, including cases cited by counsel. The reasoning of the judgment, however, fails to engage with those judgments in any meaningful way, apart from – once again – reciting them while describing the law on the point. A good example is Rajbala vs State of Haryana, where the Justice Chelameswar held that the arbitrariness doctrine under Article 14 could not be used to strike down legislation. This was contrary to the binding decision in Mardia Chemicals. That case was not considered while arriving at the above conclusion, but is nonetheless found in the judgment, in a footnote while reproducing counsel’s submissions. A strict application of per incuriam in such a situation would defeat the purpose of the doctrine itself, since what it stipulates is that a Court is bound to consider precedent (although, having once considered it, it can choose to read it in a way that is obviously incorrect – in such a situation, the latter decision will then become binding law.

It is my submission that Subramaniam Swamy vs Union of India is per incuriam on both the narrow and the broad conceptions of the doctrine. It is per incuriam because of its failure to consider the ratio of R. Rajagopal vs State of Tamil Nadu, that is, the finding that a regime of no-fault liability in defamation causes a chilling effect upon free speech.

Subramaniam Swamy vs Union of India mentions Rajagopal at exactly one point in the 268-page long judgment: at page 5 of the judgment (paragraph 2), where it cites the passage in Rajagopal stating that:

“In all this discussion, we may clarify, we have not gone into the impact of Article 19(1)(a) read with clause (2) thereof on Sections 499 and 500 of the Indian Penal Code. That may have to await a proper case.”

Let us now come to Subramaniam Swamy’s consideration of the chilling effect. The Court holds:

“Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.”

Previously, I have argued that this paragraph makes some fundamental conceptual errors in its understanding of what the chilling effect is. Be that as it may, let us now consider R. Rajagopal’s Case

In R. Rajagopal’s Case, the Supreme Court modified the common law of civil defamation. It replaced the no-fault liability standard with either a New York Times v Sullivan standard of actual malice, or the English standard of reasonable publication (I say “either” because the judgment seemingly adopts both tests, which are actually very different). Crucially, it cited New York Times v Sullivan, and cited that exact paragraph where Sullivan held that no-fault liability causes a chilling effect upon free speech. It then made the following finding:

“… in the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true.”

In other words, Rajagopal holds that in case of statements defaming public officials, the standard is the (Sullivan) standard of reckless disregard for the truth. It’s reason for doing so is the chilling effect caused by a no-fault liability standard (and in fact, that can be the only reason for doing so, since that was at the heart of Sullivan). Consequently, the proposition that a no-fault liability standard causes a chilling effect in case of defamation is part of the ratio decidendi of Rajagopal. As recently as 2015, in M/s Fibre Boards v CIT, the Supreme Court clarified that the ratio of a case includes the reasons that form part of its conclusion (paragraph 27)

It may be argued at this stage that Rajagopal was a civil defamation case, and the question of what to do about criminal defamation was left open by that bench. That is true; however, that a no-fault liability provision for defamation causes a chilling effect upon speech is agnostic about whether the liability might take civil or criminal form. The reasoning given in Sullivan was that an individual who will be required to take the stand and prove the truth of his statement in order to avoid liability, will tend to self-censor, and “steer clear of the unlawful zone”, thus impoverishing public discourse. In other words, the chilling effect is caused by the legal standard (no-fault liability), and not by the nature of the liability (chilling effect).

For this reason, Subramaniam Swamy’s finding that criminal defamation’s no fault liability does not chill speech is reached in ignorance of Rajagopal, and is therefore per incuriam.

Even if this argument fails – i.e., even if one believes that since Rajagopal was about civil defamation, it’s ratio cannot be extended to cover cases of criminal defamation – Subramaniam Swamy remains per incuriam under the broader definition of Sundeep Kumar Bafna. This is a much simpler case to prove. After Swamy, the legal standard for imposing criminal liability (no-fault) is lower than civil liability (Sullivan) in case of public officials. This overturns the legal system on its head, and leads to an illogical position as long as both decisions continue to hold the field. In terms of Bafna, it is impossible to “reconcile the ratio” of Subramaniam Swamy with R. Rajagopal.

I submit, therefore, that Subramaniam Swamy vs Union of India is per incuriam, and therefore a judgment that has no legal validity and does not serve as precedent for future cases. It is to be hoped that on an appropriate occasion, a future bench of the Supreme Court will consider these arguments while deciding whether or not to refer another constitutional challenge to criminal defamation for resolution by a bench of five judges (as Article 145 of the Constitution requires).

The Supreme Court’s Criminal Defamation Judgment: Glaringly Flawed

In a judgment delivered today, a two judge bench of the Supreme Court rejected the constitutional challenge to criminal defamation, and upheld the validity of Sections 499 and 500 of the Indian Penal Code. The opinion was written by Justice Dipak Misra. In this post, I shall discuss the judgment which, unfortunately, commits several glaring errors. Before that, however, let us briefly recall the case against criminal defamation. Article 19(2) of the Constitution permits “reasonable restrictions” upon the freedom of speech, “in the interests of… defamation.” Article 19(2) is silent about whether “defamation” includes both civil and criminal defamation. The word “reasonable”, according to the judgments of the Supreme Courts, requires a relationship of proportionality between the degree to which free speech is infringed, and the corresponding interest at stake. In its public order cases, for instance, the Supreme Court has held that “reasonable” restrictions upon the freedom of speech in the interests of public order must only be limited to speech that “incites” others to public disorder.

The first attack against Section 499 was that by criminalising what is essentially a private wrong, the Section amounted to a disproportionate restriction upon free speech. Private wrongs – that is, wrongs to individuals at the hands of other individuals – are meant to be pursued through the civil courts, with damages and compensation as the remedy. It is only when there is a public element to the wrong (e.g., murder endangering the peace of the society as a whole) that the State steps in (interestingly, there was a public element involved at the time that defamation was first criminalised, in England – it was to stop people from resorting to duels in order to vindicate their honour).

Secondly, iR. Rajagopal’s Case, decided in 1994, the Supreme Court considered the relationship between free speech and civil defamation. The Court held that the common law of defamation, as it then stood, unreasonably restricted speech under Article 19(1)(a). This was because common law defamation imposed a regime of no-fault liability: in case of factual errors, the speaker could not escape liability by showing that she had taken reasonable care in checking the veracity of her statement. Following the established jurisprudence from the United States and Europe, which had modified civil defamation law in order to bring it in line with the guarantee of freedom of speech, the Supreme Court adopted the “Sullivan test“: in making statements about public officials, speakers were liable only if it could be shown that they had acted with “actual malice” – that is, having knowingly spoken falsely, or acted with reckless disregard for the truth.

The concept of “reasonableness” in the context of defamation and free speech, therefore, was considered and decided by the Court in Rajagopal. Now criminal defamation, under Section 499 of the IPC, contains a far lower threshold than this. It follows pre-Rajagopal law in criminalising false statements without regard for due care, and also adds an additional “public interest” requirement to the defence of truth (in civil law defamation, if it can be shown that the statement was true, there is no liability). The core of this argument, therefore, is that the regime of criminal liability set up by Sections 499 and 500 goes beyond the “reasonableness” requirement of Article 19(2).

It is vitally important to distinguish the first and the second argument. According to the first argument, criminalising defamation per se is unconstitutional. According to the second argument, the legal regime of defamation as set out in Sections 499 and 500, is unconstitutional. Unfortunately, it is a distinction that is entirely lost upon the Court. In its judgment, the Court spends reams and reams of pages dealing with the apparent importance of reputation, and how criminalising defamation is proportional. However, it pays no attention to the fact that the language of Section 499 sets up an even harsher regime than was found to be unconstitutional in Rajagopal, in the context of civil defamation. As a result, we now have a truly bizarre position in Indian law: civil defamation law is more speech protective than criminal defamation law. This turns jurisprudence entirely on its head.

The judgment itself is difficult to read and analyse. It is 268 pages long, and most of it is irrelevant, since it either describes various judgments, or incorporates quotations from various sources such as the Gita, and Patrick Henry. Very broadly, however, this seems to be the flow of the judgment. The first 69 pages are spent in rehearsing the submissions of counsel. Pages 69 to 73 are spent discussing the meaning of “defamation” (on which there was really no controversy). On Page 73, there is a heading titled “Concept of Reputation“, with sub-headings such as “Vision of the Ancients” and “Thoughts of Creative Writers and Thinkers.” Following this, judgments from various Courts are excerpted that talk about the importance of “reputation”, with the conclusion that the right to reputation is an “inseparable facet of Article 21.” (page 97) This goes on until page 97.

From page 98, the Court considers the freedom of speech and expression. It spends about twenty-five pages dealing with a submission that seems to be something of a straw man: that the word “defamation” under Article 19(2) ought to be read in conjunction with “incitement to an offence“, which follows it, and therefore be given a restricted meaning. After citing extensively from the Constituent Assembly Debates, the Court rejects this submission. Without going into the merits of the Court’s examination of the Constituent Assembly Debates, this argument proves nothing. The core of the case against criminal defamation is not that the word “defamation” under Article 19(2) must be read to exclude criminal defamation, but that criminalising defamation in the manner that the Indian Penal Code does is an unreasonable restriction upon free speech.

From page 123, the Court considers the argument that criminalising defamation is disproportionate, since defamation is a private wrong. The Court observes:

“Individuals constitute the collective. Law is enacted to protect the societal interest. The law relating to defamation protects the reputation of each individual in the perception of the public at large. It matters to an individual in the eyes of the society. Protection of individual right is imperative for social stability in a body polity and that is why the State makes laws relating to crimes. A crime affects the society. It causes harm and creates a dent in social harmony. When we talk of society, it is not an abstract idea or a thought in abstraction. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large.” (page 123)

This, however, is no reasoning at all, since it effectively dissolves the distinction between private and public wrongs altogether. If individuals make up society, and if therefore a wrong to an individual is ipso facto a wrong to society, then there’s no such thing as an individual wrong in the first place.

The Court attempts to buttress its argument by citing numerous English authorities that have questioned the distinction between public and private wrongs. At the end of its citations, however, it accepts the distinction as lying between the violation of individual civil rights, and breaches of “public” rights or duties. (page 127) The Court then spends a few pages extracting quotations from various judgments that talk about what constitutes a crime. At the end of it, it observes that “it cannot be stated that the legislature cannot have a law to constitute an act or omission done by a person against the other as a crime. It depends on the legislative wisdom.”

No further analysis is offered on this point. The main contention – that criminalising a private wrong is a disproportionate – and therefore, unreasonable – restriction upon free speech, is not considered by the Court.

From page 138, the Court embarks upon a topic titled “Sanctity and significance of freedom of speech and expression in a democracy.” The next 30 pages may be skipped, as the Court extracts quotations from various judgments dealing with value of freedom of speech in a democracy. From page 166, it begins a discussion on “reasonable restrictions”. Various judgments are extracted. The Court sums up its discussion by observing that “The principles as regards reasonable restriction as has been stated by this Court from time to time are that the restriction should not be excessive and in public interest.” (page 175) This, it bears repeating for the umpteenth time, is entirely incorrect. Article 19(2) does not have a public interest restriction. Numerous judgments, from Shreya Singhal to Sakal Papers, have pointed this out. Other sub-clauses under Article 19 do. The Court cannot justify restrictions upon the freedom of speech by invoking public interest. It is extremely unfortunate that this basic textual error continues to be made, sixty-five years after the Constitution.

From reasonable restrictions, the Court then leaps straight to Article 21. No analysis is given about the link between the two. Under a heading called “Balancing of Fundamental Rights”, commencing from page 182, the Court deals with “balancing” the right to reputation under Article 21, and the freedom of speech and expression under Article 19(1)(a). After spending a few pages dealing with various cases on balancing rights, the Court then cites the In Re Noise Pollution Case (whose incorrect reasoning I had commented on a few days ago) to hold:

“Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom. It is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being had to another person’s right to go to Court and state that he has been wronged and abused. He can take recourse to a procedure recognized and accepted in law to retrieve and redeem his reputation. Therefore, the balance between the two rights needs to be struck. “Reputation” of one cannot be allowed to be crucified at the altar of the other’s right of free speech.”

Except that, this is a complete non-sequitur. It is nobody’s case that reputation be “crucified” at the altar of free speech. The Court needs to explain why taking away a criminal remedy amounts to “crucifying” reputation. It does not even attempt to do so.

Matters grow worse in the next paragraph, however, because the Court then says:

“Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.” (page 199)

If the previous passage contained a non sequitur, then this one is simply incorrect. Whether or not criminal defamation has a chilling effect is entirely independent of whether reputation is a basic element of Article 21, and legislative “wisdom” in keeping it alive. The chilling effect refers to the manner in which over-broad and severe laws “chill” speech. It takes the existence of a law as a given, and it is that law which must be examined for its chilling effect. Instead, the Court seems to be saying that the existence of a law means that there can never be a chilling effect!

On page 205, the Court begins an examination headed by the ominous phrases “constitutional fraternity” and “fundamental duty“. After excerpting some passages on the meaning of fraternity, it then says that “The individual should have all the rights under the Constitution but simultaneously he has the responsibility to live upto the constitutional values like essential brotherhood – the fraternity – that strengthens the societal interest. Fraternity means brotherhood and common interest.” (page 208)

This is all very well as a moral point, but as a legal standard, it’s rather vague and entirely irrelevant. It was not enough that the right to freedom of expression could be restricted on the eight grounds stipulated in Article 19(2). It was not enough that the Court would then bring in a boundless Article 21, and use it as a sword to cut down free speech further. Over and above all of that, the Court introduces a further ground for restricting speech: the “duty” of “constitutional fraternity”. At this stage, it is difficult to see what remains of Article 19(1)(a). The Court follows this up with an even more disturbing discussion about “constitutional duties” under Part IVA of the Constitution (which are expressly unenforceable), holding that “respect for the dignity of another is a constitutional norm. It would not amount to an overstatement if it is said that constitutional fraternity and the intrinsic value inhered in fundamental duty proclaim the constitutional assurance of mutual respect and concern for each other’s dignity.” (page 214 – 215) “Fraternity” and “fundamental duties”, neither of which are found anywhere in Article 19(2) or Part III, have become tools to restrict the freedom of speech and expression.

The Court spends the next thirty pages of its judgment examining the scope of Section 499 itself. After citing many judgments, it comes to the conclusion that the provisions of Section 499 are not vague. As I pointed out at the beginning of this post, however, it fails entirely to deal with the issue of no-fault liability as disproportionate under Article 19(2). In fact, it goes further, and justifies the additional public interest requirement under the First Exception, in the following way:

“… examples pertain to an imputation that a person is an alcoholic; an imputation that two family members are involved in consensual incest; an imputation that a person is impotent; a statement is made in public that a particular person suffers from AIDS; an imputation that a person is a victim of rape; and an imputation that the child of a married couple is not fathered by the husband but born out of an affair with another man. We have set out the examples cited by the learned senior counsel only to show that there can be occasions or situations where truth may not be sole defence. And that is why the provision has given emphasis on public good.”

This, however, seems to be an unnecessary requirement. If I correctly state that you suffer from AIDS, or have been born out of an adulterous affair, then I may be liable to you in an action for privacy. Why would this lead to an action for criminal defamation? And why, when there exists a remedy in a claim for privacy, is there a need to have an additional remedy for criminal defamation?

The Court concludes (more or less) with the following observation:

“One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context criminal defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterized as disproportionate. Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest.”

The last twenty pages of the judgment deal with the procedure for defamation under Section 199 CrPC, which I will not examine here.

At the end of all this, however, the following points should be clear. The Court spends 268 pages excerpting quotations, extracting cases, and making blanket assertions without justification. It fails to do the following:

(a) Explain how defamation is a public wrong (stating that society is an aggregation of individuals does not count)

(b) Explain why, if defamation is a private wrong with elements of a public wrong, criminalisation is a proportionate response

(c) Explain why no-fault liability and an added test of public good in the defence of truth is proportionate and reasonable, especially in the light of Rajagopal’s Case, and consistent jurisprudence from across the common law world

(d) Explain why the chilling effect is not a valid concern

(e) Explain why the “balancing” between the enumerated right to freedom of speech and the unenumerated right to “reputation” under Article 21 yields criminalising defamation as the solution

(f) Explain how fraternity and fundamental duties have become independent grounds to restrict free speech

In addition, the judgment continues the profoundly disturbing trend of using Article 21 as a sword to limit other fundamental rights, an issue I had written about a few days ago.

Lastly, the judgment is difficult to analyse not only because of conceptual slippages and screaming silences where there should be argument, but also because of its language. What, for instance does it mean to exposit “cavil in its quintessential conceptuality and percipient discord“? What is an “asservation“? What is an “oppugnation“? What does it mean to say that “reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on posterity“? Do Judges not have a duty to write clearly, stick to the point, and give reasons for their conclusions? Unfortunately, the indiscipline with which the Court examines the law and the Constitution here, is equally matched by its indiscipline with language.

The result is not pleasant.




The Criminal Defamation hearings have begun – and they’re off to a bad start

Today, a two-judge bench of the Supreme Court began to hear the constitutional challenge to Sections 499 and 500 of the IPC, which criminalise defamation. This is a hugely significant free speech case, for many reasons. Section 499 has been on the statute books since 1860, and this is the first time that the Supreme Court is hearing a frontal challenge to its constitutionality; the many abuses of criminal defamation as a weapon to silence investigative journalism are well-documented; furthermore, this is the first case after Shreya Singhal vs Union of India, where a legal provision has been challenged on the ground of Article 19(1)(a), and it gives the Supreme Court a chance to build upon the progressive jurisprudence advanced in that case.

The Centre for Communications Governance at NLU-Delhi has reported the first day of the hearings, and we seem to have gotten off to a rather bad start. CCG reports:

“The Attorney General at the outset requested the court to refer the matter to a constitutional bench as per Article 145(3) of the Indian Constitution. The bench however did not seem very inclined and provided examples of multiple cases in the recent past including Suresh Kumar Koushal and Shreya Singhal which were decided by a two judge bench. In response the Attorney General submitted that if in other instances the correct course was not followed, that should not be a reason to not refer the matter in the present case. Mr. TR Andhyarujina, who has been appointed as an amicus in the case also supported the Attorney General’s contention. The Court has allowed the Union of India to raise this issue in their final arguments and has agreed to answer it in the final judgment.”

Actually, I’d love to read the final judgment just to find out what reasons the Court invents to justify not referring this case to a Constitution Bench. Article 145(3) states:

The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five.”

If challenging the constitutionality of criminal defamation on the touchstone of Article 19(1)(a) is not a “substantial question of law as to the interpretation of the Constitution“, then what is? Whichever way you lean on this issue, it is undeniable that the case will raise some complex and significant questions of constitutional law. Since Article 19(2) specifically mentions defamation as one of the grounds on which speech can be restricted, the Petitioners’ arguments will have to impugn its reasonableness. In other words, Petitioners will need to argue that the very fact of criminalising defamation violates Article 19(2)’s requirement of reasonableness – both procedurally and substantively. This, in turn, will require the Court to go deep into the the scope of “reasonableness”, and apply it to an entirely novel set of contentions. Furthermore, it will require the Court to take into account two divergent branches of law – civil defamation and criminal defamation – and examine them in light of each other. This is because in Rajagopal’s Case, civil defamation has already been modified in order to bring it into conformity with Article 19(1)(a), but the same has not been done for S. 499. At this stage, therefore, we have two divergent regimes of defamation law, with radically different standards: civil defamation, that requires the New York Times vs Sullivan test of actual malice, and is heavily in favour of speakers; and Section 499, whose defences require the speaker not just to prove the truth of his statement, but also that he made it in public interest. Contrary to civil defamation, this stacks the deck against the speaker almost as far as it is possible to go. Whatever decision the Court takes, it will be faced with the complex task of harmonising the two facets of defamation, or explaining why differential standards are justified when it comes to free speech.

Lastly, the pragmatic implications are immense: the Court is asked to rule upon the constitutional validity of an entire legal regime – that of criminal defamation. It is not simply S. 499 at stake, but also the sentencing provision (S. 500), as well as the CrPC provisions, such as S. 199, which lay out the procedure for prosecution. The judgment, therefore, has the potential to bring about far-reaching changes in the law. By any standards, this is a substantial question of law as to the interpretation of the Constitution, and ought to be decided by a bench of five judges. The references to Koushal vs Naz and Shreya Singhal are – as the Attorney-General rightly pointed out – compounding an error. Both those cases ought to have been decided by a Constitution Bench. The constitutional validity of S. 377 would – and did – require the Court to venture into wholly unexplored terrain in the realm of equality, non-discrimination and privacy; and the constitutional validity of S. 66A likewise required the Court to investigate a series of crucial concepts such as over-breadth, vagueness and the chilling effect, and determine their place in the constitutional scheme. This case simply continues the trend whereby matters of critical constitutional importance are being decided by a two-judge bench. The inevitable effect of this is a fragmentation of doctrine, the erosion of stare decisis, and the incremental erasure of the rule of law.

CCG further reports:

“The bench clarified that it will only be dealing with the issue of constitutionality of sections 499 and 500 of IPC and will not look into how these sections are applied. The bench also stated that it cannot abolish a provision as that is the job of the parliament, it can only look at the constitutionality of the provision.

The Attorney General also dealt with the issue of criminal and civil defamation and stated that a civil suit for damages in such instances keeps pending for years and there is hardly any award provided, nor is there any deterrence effect whereas criminal provision at least has some deterrence effect. He also compared the situation to the English system and was supported by Mr. Andhyarujina and both of them stated that unlike the India system its easy to approach the civil court for damages in such cases and obtain a relief whereas in India the system should be kept in mind. However, the bench reiterated that it will only examine the constitutionality of the sections and the system that exists for civil defamation and the time take to decide such suits will have no bearing on that.”

Unfortunately, the Court gets this wrong. The issue of application is critically important to a fair adjudication of this case, because at the petitioners’ contentions are founded upon the procedural unreasonableness of the fact of criminalising defamation. Procedural unreasonableness can only be established before the Court by describing how the criminal process actually works. Criminal defamation chills speech precisely because it is possible to harass speakers by filing multiple cases in different parts of the country, because the pre-charge stage drags on for years, and because defences are only available at the time of trial. Instances of misapplication are the best evidence of how the criminal procedure is manipulated to chill speech.

Similarly, the fact that civil remedies are largely toothless is significant because, as Shreya Singhal reminded us, to be constitutional, speech restricting statutes must be drawn narrowly. A crucial aspect of the petitioners’ case will be that the criminal defamation provision is not drawn narrowly precisely because there exists a narrower remedy – civil defamation, which infringes upon rights to a lesser degree, while performing the function of protecting peoples’ reputation. The Union, therefore, should be entitled to show that the way things are in India, the civil remedy is no remedy at all; consequently, S. 499 ought to be upheld, because it is the narrowest possible way in which the legislature can achieve its goal of protecting reputation.

What the above paragraphs demonstrate is that – as the Court recognised in V.G. Row so many years ago – context is crucial in any reasonableness enquiry. The Court has to look at the importance of the State’s professed goal, the extent to which rights are being curtailed to achieve it, and the proportionality between the two. In the case of criminal defamation, that context is precisely the workings of the civil and criminal process in India. In blinkering oneself to these realities, the Court risks writing a judgment that fails to be roooted in reality.

These are early days, and I hope that my pessimism turns out to be unfounded. But it seems to me that right at the outset, the Court has made two rather serious blunders: refusing to refer this case to a Constitution Bench, and refusing to listen to arguments about the application of S. 499. Whatever the outcome, the judgment – as well as free speech jurisprudence – will be much the poorer for these blunders.